Tucker Immigration Outline

Tucker Immigration Outline - Immigration Outline I...

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Immigration Outline I. Constitutional Law a. Plenary Power Doctrine ( Chinese Exclusion Case ) i. Government must retain sovereignty 1. Assuming that it is an incident of sovereignty, why does it follow that a court, particularly the Supreme Court of the United States, is barred from reviewing a congressional exercise of that authority? ii. Rights v. Privilege – Tucker thinks this is the only one with merit 1. Aliens are not entitled to rights, so anything granted by Congress is a privilege that can be revoked by Congress at any time 2. US ex rel Knauud v. Shaghnessy – whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned 3. As a group the entirety of aliens are locked out of the political process iii. Foreign relations/political question 1. Baker v. Carr – unreviewable political question a. Discriminating inquiry into precise facts and posture of the particular case b. Requires case by case analysis of the degree to which judicial intervention might impair foreign policy concerns b. Developments i. Chinese Exclusion – recognized inherent federal power to exclude noncitizens ii. Ekiu – rejected due process limits on exercise of power iii. Fong Yue – extended from exclusion to deportation 1. Justice Field’s dissent – residential alien’s have protection of Constitution 2. Majority a. Deportation not punishment b. Constitution does not have extraterritorial power c. Consular decisions are not judicially reviewable c. Difference between entry case and resident case (deportation v. exclusion) d. Roth test i. Due Process independent of Constitution ii. Due process has to affect life, liberty, or property e. Matthews test i. Private interest that will be affected by official action ii. Risk of erroneous deprivation of such interest through procedures used and the probably value of additional or substitute procedural safeguards iii. Government’s interest, including function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail
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f. Questions really turn now on ties and interests to the community ( Chew and Plasencia ) g. Goldberg v. Kelly – individual meaningful response is due process h. Two exceptions to alien always loses i. Homosexuality 1. Rosenberg v. Fleuti – Court created entry doctrine that stated that as long as trip was brief and not a significant and meaningful departure, alien can only be deported, not excluded a. Look to length of absence and purpose of visit b. Determined by the courts, not administration ii. Criminal behavior 1. Francis v. INS – If alien has engaged in criminal act but has lived in US more than 7 years, then forgiven of small offense a. 212(c) only applies to aliens reentering country 2. Zadvydas and Demore a. Limited detention to 90 days removal period II. Immigrant Priorities a. History i. 1952 1. Nonimmigrant – one who established that he sought to come temporarily 2. Alien spouses and children of American citizens and returning law
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This note was uploaded on 04/27/2010 for the course LAW 840 taught by Professor Tim during the Spring '10 term at University of Louisville.

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Tucker Immigration Outline - Immigration Outline I...

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